SAVING WHAT IS LEFT OF CRIMINAL DEFAMATION

Kushal Tekriwal & ISHAN PURI, 5-year B.B.A. LL.B. (Hons.), Jindal Global Law School, O.P. Jindal Global University

“A human personality is endowed with potential infinity and it blossoms when dignity is sustained; When a dent is created in the reputation, humanism is paralysed.”[1]

“An honour which is a lost or life which is snuffed out cannot be recompensed.”[2]

Defamation is causing damage to someone’s fame. Any statement that tarnishes the image of the other is defamation. Ron Hankin, in his book “Navigating the Legal Minefield of Private Investigations: A Career-Saving Guide for PrivateInvestigators, Detectives, And Security Police”[3], in 2008, has defined five essential elements of defamation:

• The accusation is false

• It impeaches the subject’s character

• It is published to a third person

• It damages the reputation of the subject

• The accusation is done intentionally or with fault

Defamation was introduced by Lord Macaulay in 1835. Since then, there was a spate of famous political cases which have put defamation to the center of controversy in the last few years.Jayalalithaa filing defamation cases against Subramanian Swamy in 2011 when she became the Chief Minister of Tamil Nadu. Arvind Kejriwal, Rahul Gandhi and Rajdeep Sardesai have also been involved in defamation battles. The impending problem with the act is that being an archaic and a draconian law having no modifications since its enactment has led to a regressive impact and our suggestion for the same isto implement a tribunal system for the same for proper and faster disposal off cases as explained throughout the article.

LEGISLATIONS APPLICABLE:

Defamation has been defined in Section 499of the Indian Penal Code (IPC).[4]The substance of the provision is protected by ten exceptions which shall be delved in and as required in the paper. The punishment for defamation is given in Section 500 of the IPC.[5]On the same context, section 199 of the Criminal Procedure Code (CrPC) aids by providing the major ingredients for defamation law:[6]

  1. An imputation is said to harm a person’s reputation
    1. if it directly or indirectly, lowers, in the estimation of others,
      1. the moral or intellectual character of that person, or
      1. the character of that person in respect of his caste or calling, or
      1. the credit of that person, or
    1. if it causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

There is a thin line that one needs to dovetail between criminal and civil defamation. While the criminal postulation of defamation has been provided above, within the civil law there is no codified law in India, but recourse can be taken under section 9 of the Code of Civil Procedure (CPC).[7]A civil action is governed by the common law principles i.e. the injured party can file a civil suit before a civil court for seeking damages in the form of monetary compensation from the defendant, as remedy for a civil defamation is covered under the law of torts.[8]Another point of differentiation is the fact that in civil suits, one can ask for compensation but in criminal cases, one cannot ask for compensation as the main aim behind criminal trials is to punish the offender.If done verbally, defamation is categorized as slander while written form is categorized as libel as per the common law notion and principles set.

WHERE THE PROBLEM LIES:

Media Trials:

The defamation laws have overtaken the sphere of media and journalism to a large extent and thus it has become a primary necessity to implement some restrictionsin the light of current law to address the issues of media campaigning. Media trials even before the matter going to the court or even when a judgment has been pronounced has led people to make a pre-conceived notion about such people who even have been declared innocent face the boycott of the society. Instances from Sanjay Dutt’s trial on TADA to Rhea Chakraborthy’s innocence in relation to murder of Sushant Singh Rajput to various political leaders, such coverage has encompassed over all the spheres.

Free Speech:

There have been numerous arguments regarding the defamation law being an infringement on the right to free speech conferred by Article 19(1)(a) of the Constitution of India[9]which every citizen in the country possesses.The right of one’s own choice and freedom to express and propagate ideas is being curtailed by the colonial law of defamation. Though the limitations in Article 19(2) exist in lieu of exercising Article 19(1), they cannot be invoked unless freedom of expression and speech endangers community interest. Furthermore, the danger must have an immediate and a proximate nexus with the said expression.

Moreover,itviolates the principle of reasonableness wherein it has been argued that the defamation law excessively infringes upon a fundamental right. The pre-constitutional provisions need to be looked at with a deeper scrutiny especially in the case of defamation, which has been looked as a socially digressive legislation. This has become important especially in times when many legislations have quite frankly, become incompatible with the current social environment of our world.

Archaic:

The defamation law is an archaic and a draconian law which was put in place by the British when they ruled over the country. It was put in by Lord McCauley as mentioned in the year 1835. More importantly, it is prudent to remember that at the time the IPC was paused, our country was reeling from the attacks of the British. This provision slowly became the tool to silent any criticism that may have it is on at that time. It very aggressively violates the living tree doctrine which the law makers and the courts need to maintain in respect of such legislations. Having such an archaic legislation often leads to a halt in terms of progressive and in today’s time, it leads to having regressive impacts on the society with respect to the offenders and the victims who suffer from this offence. Thus, keeping in mind the social logical conditions are not the same anymore, it makes no sense to have such an archaic and all provision in light of defamation does not reflect the morality and social equality which is asked and prevalent in the society today.

Private Wrong:

Defamation has been put in the CrPC, adding a collective value to the offence which has systematically worked to silence the voices of dissent and curtain freedom of speech. Nothing in this offence postulates a wrong against the whole of society and criminal prosecution based on the understanding that the state ought to rectify private wrongs is wrong. By categorizing this as a criminal offence, we expose ourselves to the possibility of the tax and criminal law prosecution process that exist in this country to be exercised in a private wrong. Once arrested, the cycle of bail, arrest, and the trial will begin. One also need to take into account the fact that we live in a very conservative society that is prone to making judgements and calling people criminals the moment they get arrested. Thus, the whole criminal law process is very taxing and actually damages the reputation of the people who go to the weight or has a very large scale implication which is quite ironical since defamation deals with the damage to a person’s reputation.

Process Hurts:

The pathetic situation and condition of the courts is not something that most people arenot aware of. The courts in this country are overburdened to such incapacity that it is practically impossible to tell whether this country will ever reach a point in time there where there will be no backlog of cases. Not only does the backlog of cases make the courts week, the appellate system that exists in India is also part of the problem as to why criminal defamation has become such an important and controversial topic that. The wide range of powers of the Magistrate granted to him in a way where a magistrate can initiate legal proceedings in case of defamation provided if somebody wants to write a critical article about the state of the country or address any other person critically, they will have to bear in mind that defamation proceedings could be brought upon them and the lucky, expensive, hectic and faulty criminal justice system, in its full force, could be used against them.

DEFAMATION OUTSIDE INDIA:

United Kingdom:

United Kingdom (UK) has undergone a major change in 2013 after enacting the Defamation Act, 2013.[10] In UK, criminal defamation has been involved in only libel as an offence i.e. any permanent sort of publication or representation being made in favour of an individual or entity. This Act was enacted after the fallback of major issues in its 1996 Act whose scope was limited and was observed as an undue favour towards protection of reputation at the expense of freedom and expression. The 2013 Act introduced key elements of ‘serious harm’ and ‘single publication’ principle, the defence of ‘truth’, publication in matter of public interest and honest opinion[11]. The serious harm concept expressed that a publication should have a likely effect of causing serious harm to a person’s reputation. The case laws have provided a settled view on the degree of harm which ‘serious’ term implies that being very specific to reputational harm in relation to the facts of a particular case and the impact which it causes  needs to be proven as per the threshold set by the statute.[12] It led to formulation of serious harm on the basis of three elements namely scale of publication; evidence of such publication to the identifiable individuals and the gravity of such statements.[13]

The defence of honest opinion has been another debated issue by the Judiciary. Passing an honest opinion might have a two-sided impact from the perspective of the parties and the demarcation of such opinion from a defamatory comment has been a thin line and despite of establishing principles, the division becomes a grey area to an extent as emphasized by the courts. The scope of the Act which included the journalists qualified privilege was replaced with the new rule of publication in matter of public interest whereby it led the journalists to act cautiously as no more of a statutory defence was applicable to them. The new rule would encompass those situations where the defence of honest opinion would not be available. As per the courts, it has been a residuary provision however, a situation like this would be considered far-fetched.[14] The issue moreover lies in respect to the online statements and publications whereby earlier, the limitation of twelve months for any subsequent publication would not apply, however due to the introduction of the single publication rule, such lacuna was resolved after ending the previous set liability where the timeline used to reset.

The Act quite expressly stipulated the ousting of jurisdiction of the courts in England against defamation cases. These cases must act as the last resort to enable them for a trial in front of the judge and jury.[15] The Act further provided for the presumption to be on the judges rather than the traditional presumption on the jury regarding the mode of a trial. UK follows a Pre-Action Protocol framework whereby as per its Civil Procedure Rules, a separate area has been carved out especially for handing the defamation cases. The notion of pre-action was that the litigating parties must use the court proceedings as the last stage and should emphasize more on out of the court settlements. The advantage as been acknowledged by the courts from time to time are a low cost-effective early settlement between the parties which thus enables to reduce the burden on the courts.[16]

It can be observed that in cases of criminal defamation for high profile cases, the media resorts to interfering in such person’s private life and making unnecessary remarks under the pretext of being granted as freedom of speech and expression. Thus, under the light of media and communication, the UK Legislature came up with an updated Pre-Action Protocol in 2017[17] to exchange information between the parties at the early stage for a quick settlement. Moreover, it provides for such cases to be disposed of within a span of three months. However, the leading case laws on settling defamation principles have laid down the importance of full trial which would contravene the purpose for which the pre-action protocol has been introduced for this type of cases.[18]

Netherlands:

The Netherlands follow a similar procedure when it comes to dealing criminal defamation which is in line to the other international country procedures. The only differentiating point is that it excludes the international standards which various countries follow for their defamation law. An astonishing provision in the Dutch Penal Code arises in the form of Article 267 whereby any offence of defamation which is committed against a public official, if proven leads to an enhanced punishment by one-third to the existing punishment for defamation. Moreover, the Act provides for an added protection to such public officials which is an issue in respect to the set international standards followed by various countries. Though, the impact may be towards the restriction on the freedom of media and press, such offence being reported are quite rare. However, it doesn’t entail one to curb the freedom as such. Moreover, the courts on this issue has decided in the opposite. It was in 2009 where the Supreme Court of the Netherlands came up with a judgement whereby the court had rejected the idea of adopting the defamation laws to be in line to the other international standards and the application of such defence to these officials would be expected to be more resilient towards the defamatory claims[19]. Since these provisions take away the essence of the democracy spirit as held by the international community, the repealment of such provisions becomes necessary.

Moreover, in India section 499 of the IPC defines defamation and similar protection is granted to the public officials as per the CrPC, section 199. The Supreme Court in Subramanian Swamy v. Union of India have referred such power granted to be constitutional in nature.[20] The Judges clearly stated that there cannot be defamatory attacks on such officials as a result of them discharging their duties.[21] The court however acknowledged that one is bound to tolerate criticism but that should be clearly distinct from a defamatory remark.[22] This is in stark contrast to the law in Netherlands though since the protection given to the public officials can be brought into question if the complaint has been made by an aggrieved party. But the term ‘aggrieved party’ should be interpreted in the light of facts of each case and must be determined by such court as an open interpretation and scope might lead towards an increased number of frivolous litigations.[23]

RECOMMENDATIONS:

Section 89 Alternative:

In respect to the pre-action protocol which is followed in the UK, India also has a similar provision in the CPC in form of section 89[24] which essentially expresses how if the judges feel that for a matter to be referred to an ADR, must be done at the option of the parties before the issues are framed for any dispute. Though, such provision would apply for cases in civil defamation, a similar provision would have an immense impact in the CrPC where such provision is absent. One knows the essence of media trial and the mental impact it has on a person in connection to the alleged crime. A proper example is the death of Sushant Singh Rajput whereby alleged ‘accused’ Rhea Chakraborty even before the matter went in to the courts for adjudication, was declared to be the culprit for the former’s death and thus, the media interfered with derogatory and defamatory remarks in front of the whole nation and grossly intervening in her personal life violating Article 21 of the Constitution.[25] Even though defamation is considered to be both civil and criminal wrong in India, a Magistrate Court or a Sessions Court (as jurisdiction persists) cannot bring into motion a provision under CPC and thus it becomes important on this point to have a provision under CrPC too include the option of an ADR upon the motion of the court as the cases involving the issue of defamation would lead to solve quickly with the utmost level of privacy, catering to the reputation even if no offence has been committed by him/her.

An alternative to go for an out of the court settlement via opting for arbitration, mediation and judicial settlement would ensure a timely disposal of the matter whereby privacy would be respected to such matter and would ensure a smooth flow of operation in respect to both the parties.

Establishing Tribunal:

A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal in its title.[26]The delay in justice administration, is one of the biggest obstacles which have been tackled with the establishment of Tribunals.[27]Therefore, the Administrative Tribunals have been established to overcome the major lacuna present in the Justice delivery system in the light of the legal maxim “Lex dilationes semper exhorret” which means ‘The law always abhors delays.’[28]Tribunals help establish some swiftness in response to matters, help bring expert opinion for specialized cases and aid in reducing the large pendency before our courts.

It is now proven that courts in some matters, with their lengthy and legalistic attitude and procedure have failed to dispense justice at the adequate times and this disdain is clearly reflected throughout history. The 14th Law Commission Report[29] recommended appellate tribunals while the 58thReport[30] recommended service tribunals to be set up. The Swaran Singh Committee then recommended, again, the setting up of tribunals for service matters.[31]Eventually in Part XIV-A(tribunals) was added in the Constitution (in the 42nd amendment) by way of which Article 323-A (establishment of tribunals for service matters) and 323- B (establishment of tribunals for other matters) were made.[32] The objectives stated were as followed:

To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of the socio-economic development and progress, it is considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under article 136 of the Constitution.[33]

Judging by how many defamation cases have been filed in the recent memory and the absolute pathetic state of the Indian Media, establishing a tribunal for guarantee of speedy disposal makes sense. People make sensationalist comments on anyone on T.V. without any fear for consequences. If a tribunal is established for speedy justice, it is a guarantee that the state of Indian media would improve.

Stay on Proceeding of Media Trial:

There are various guidelines issued on behalf of the Ministry for the Programme Code for running any defamation campaigns by the media channels. Any aggrieved person under such relief can opt for a writ petition in form of Article 226 of the Constitution and appear before a High Court to put a stay on the media trials being conducted on such people.[34] It encroaches upon the aspect of Article 21 of a person in respect of right to privacy and thus, even though press and media have been granted their freedom of speech and expression, it surely cant overarch on the fundamental rights of a person by conducting defamation campaigns. This provision is important as many people upon whom such campaigns have been conducted aren’t aware of such remedy and if they are, they fail to approach the court for such remedy. Such acts cannot be generalized as acts for publicity as it totally rests upon the facts of each case.

An instance for this is the ongoing case for the death of Sushant Singh Rajput whereby the latest victim, Rakul Preet Singh has emerged, while she was cognizant of the facts of the case, the media alleged her in running defamatory campaigns against her, clearly encroaching her privacy. A writ petition was filed before the Delhi High Court[35] whereby she alleged such activities of media channels and the Court being fully aware of such campaigns clearly remarked that the media has been negligent in self-regulating itself in matters like these and the importance of a restraint thus becomes essential.[36] The court has clearly stated that the misuse of the authority by the media and press in today’s time has had very large repercussions in cases like these and thereby jeopardising the involved party’s future.[37] The Delhi HC in thus matter ordered for a stay on such media trials.[38] Drawing parallels with this case, it can be deduced that for such remedy to be implemented, the threshold to prove is set low and additionally, in the same case Rhea Chakraborty could also have initiated such proceeding against the media channels since a lot of encroachment has been conducted on her personal life grossly violating Article 21 by leaking her chats and whereabouts by such media houses to the large public. Moreover, even if the courts in a particular case which comes before them observes such an issue, should make efforts to initiate a suo moto action and try to resolve the violations which are being created by the media houses to issue a stay on any such defamation campaign in regards to such matter. Through this action, the Judiciary can act as the gatekeepers of the prevention of the various rights granted to its citizens and would also have a progressive impact on the society acting as a key precedent for the future disputes.

CONCLUSION:

It has become pertinent that the action be taken with regards to defamation in this country becomes eminent and necessary. While it is clear that there are prima facie problems with the law that exists in the country right now, the arguments for repealing the law completely are very difficult to support. It will present the same kind of challenges that repealing section 66A of the Information Technology presented to the Indian judicial system via declaring it unconstitutional in the Shreya Singhal case.[39] Cases instituted when the section was still valid have been going on in the court for a long time and there have been multiple reports of police still arresting people under their appeal section due to the very obvious and pathetic state of awareness of the law of people.

Therefore, we have recommended certain measures that might help ease the transition into going away from this draconian law in the future. While it is perfectly reasonable to expect problems to arise with the establishment of a tribunal, like they have been for any other tribunal, it is perhaps the most viable solution specially in a country where throwing around lewd comments and statements about other people has become prevalent to the extent where it has become difficult to stop. Defamation is being used to garner attention for political purposes for years now. Presently, it has seeped into the very conscious of the Indian media and penetrated the Indian public to the extent where any claim made by the media houses is believed. To curb this sentiment, our paper has argued for a speedy disposal of defamation cases for establishing a progressive legislature in the society.


[1]Mehmood Nayyar Azam v. State of Chhattisgarh and Ors., (2012) 8 SCC 1.

[2]State of Gujarat and another v. Hon’ble High Court of Gujarat, (1998) 7 SCC 392.

[3]Ron Hankin, Navigating the Legal Minefield of Private Investigations: A Career-Saving Guide for Private Investigators, Detectives, And Security Police, (Looseleaf Law Pubns & Corp. 2008).

[4]The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India), § 499.

[5]The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India), §500.

[6]Dr. Ambrish Saxena, Criminal Defamation and its Constitutional Validity: Case Study of Judicial Interpretations, 5 Amity Journal of Media & Communication Studies,180-192 (2016).

[7]Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India), § 9.

[8] Y. Srinivasa Rao, New Doctrine for Civil Law of Defamation, Articles on Law (Sep.25, 2020, 9:34 PM), https://articlesonlaw.wordpress.com/2020/05/14/new-doctrine-for-civil-law-of-defamation-position-of-civil-action-in-the-absence-of-a-codified-law/.

[9]INDIA CONST. art. 19, cl. 1(a).

[10] Defamation Act, 2013, No. 26, UK Public General Acts, 2013 (United Kingdom).

[11]Id.

[12] Lachaux v. Independent Print Ltd., (2019) UKSC 27.

[13]Id.

[14] Barron MP & Anor v. Vines, (2015) EWHC 1161 (QB).

[15]Lachaux,supra note 12.

[16]Pre-Action Protocol, 2006, Ministry of Justice, 2006 (United Kingdom).

[17]Pre-Action Protocol, 2017, Ministry of Justice, 2017 (United Kingdom).

[18]Lachaux, supra note 12.

[19]International Press Institute, A Kingdom Rich in Criminal Defamation Laws, International Press Institute (Sep. 25, 2020, 9:35 PM), https://ipi.media/a-kingdom-rich-in-criminal-defamation-laws/.

[20]Subramanian Swamy v. Union of India, (2016) 7 SCC 221.

[21]Id.

[22]Id.

[23]The Hindu, Protection to Public Servants Upheld, The Hindu, (Sep. 25, 2020, 9:35 PM), https://www.thehindu.com/news/national/protection-to-public-servants-upheld/article8597510.ece.

[24]Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India), §89.

[25]INDIA CONST. art. 21.

[26]David M. Walker, Oxford Companion to Law, 1239 (Oxford University Press, 1980).

[27]S. B. Sinha, Judicial Reform in Justice-Delivery System,4 SCC (Jour) 35 (2004).

[28]K. I. Vibhute, Administrative Tribunals and the High Courts: A Plea for Judicial Review, 29 JILI 524 (1987).

[29]14th Law Commission Report, Reform of Justice Administration, (Vol. I, Sep. 1958).

[30]58th Law Commission Report, Structure and Jurisdiction of the Higher Judiciary, (Jan. 1974).

[31]Swaran Singh Committee Report, 2 SCC (Jour) 45 (1976).

[32]The Constitution (42nd Amendment Act), 1976, Acts of the Parliament, 1976 (India).

[33]Id.

[34]INDIA CONST. art. 226.

[35]Karan Tripathi, ‘Media Should exercise Restraint, follow Programme Code’ Delhi HC directs in Rakul Preet Singh’s plea against broadcasting of maligning campaign against her, LiveLaw (Sep. 25, 2020 9:35 PM), https://www.livelaw.in/top-stories/media-should-exercise-restraint-follow-programme-code-delhi-hc-directs-in-rakul-preet-singhs-plea-against-broadcasting-of-maligning-campaign-against-her-163071?infinitescroll=1.

[36]Id.

[37]Id.

[38]Id.

[39] Shreya Singhal v. Union of India, (2013) 12 SCC 73.

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